U.S. v. Herman

• Decision Date: 03 January 1977
• Docket Number: No. 76-1314,76-1314
• Parties: 2 Fed. R. Evid. Serv. 627 UNITED STATES of America, Plaintiff-Appellant, v. Glen HERMAN, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 791

544 F.2d 791

2 Fed. R. Evid. Serv. 627

UNITED STATES of America, Plaintiff-Appellant, v. Glen HERMAN, Defendant-Appellee.

No. 76-1314.

United States Court of Appeals, Fifth Circuit.

Jan. 3, 1977.

John L. Briggs, U. S. Atty., Jacksonville, Fla., Mark L. Horwitz, Kendell W. Wherry, Asst. U. S. Attys., Orlando, Fla., for plaintiff-appellant.

J. Cheney Mason, Orlando, Fla. (Court-appointed), Hubert W. Williams, Orlando, Fla., for defendant-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before RIVES, GOLDBERG and GEE, Circuit Judges.

GOLDBERG, Circuit Judge:

Glen Herman stands accused of robbing a United States Post Office and killing a postal employee. On the basis of recent changes in the governing Federal Rules of Criminal Procedure and Evidence, the district court granted Herman's pretrial motion to suppress certain incriminating statements he made to two postal inspectors during what Herman claims were plea negotiations. The government appeals, arguing that the statements were not made "in connection with" any plea discussions and therefore are admissible. We disagree and therefore affirm.

I. FACTS

The crime occurred in Orange County, Florida on July 21, 1975. Postal inspectors advised the Columbus, Georgia police department that a warrant had been issued charging Herman with the killing, and Columbus police arrested him. ¹ On August 11, 1975 two postal inspectors, O. J. Broadwater and L. S. Crawford, transported Herman from the county jail to the Columbus federal courthouse for a removal hearing. The inspectors advised him of his constitutional rights.

At the hearing Herman requested that an attorney be appointed to represent him. The magistrate promptly recessed the hearing and left to obtain an attorney. Herman remained in the hearing room with the two postal inspectors. Herman initiated a conversation during which he stated, sometimes in response to Inspector Broadwater's questions, that he was not guilty of and should not be charged with murder, that his alleged partner Brunson had fired the fatal shot, and that only one shot had been fired. Herman also asked who had brought his name into the case, whether Brunson had talked, and whether authorities had recovered Brunson's gun.

At some point during the conversation Herman made the offer that is of crucial importance to this case: he said he would plead guilty to robbery charges and produce the gun if authorities would agree to drop the murder charges. Inspector Crawford testified that the plea offer came near the beginning of the discussion, following only Herman's statement that he should not be charged with murder and his inquiry as to who implicated him. Inspector Broadwater, on the other hand, testified that Herman's plea offer occurred at the end of the discussion. Both inspectors agreed that in response to Herman's plea offer Broadwater said that they were not "in position" to make any deals. Crawford testified that the discussion ended when Herman said he did not want to disclose his gun's location before speaking to an attorney.

On August 27, 1975 a two-count indictment in the United States District Court for the Middle District of Florida charged Herman with killing the postal employee in violation of 18 U.S.C. § 1114 and robbing the post office in violation of 18 U.S.C. § 2114. ² Herman moved to suppress the statements made to Inspectors Broadwater and Crawford at the August 11 removal hearing, claiming that they were made involuntarily and in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and that they were made in connection with an offer to plead guilty. See Fed.R.Crim.P. 11(e)(6); Fed.R.Ev. 410. The district court held that the statements were voluntary and did not contravene Miranda, but excluded the statements as plea-related. The government immediately filed this appeal.

II. JURISDICTION

We are met at the outset with the issue of our jurisdiction. 18 U.S.C. § 3731 authorizes a government appeal from a pretrial order suppressing evidence "if the United States Attorney certifies to the district court that the appeal is not taken for the purpose of delay and that the evidence is a substantial proof of a fact material in the proceeding." Therefore, the suppression order at issue here is appealable if, but only if, the government executed the required certificate. The requirement is not a mere formality; its purpose is to protect the accused from undue delay.

Whether the United States attorney executed the appropriate certificate is unclear from this record. Because the government, as appellant, has the burden of compiling the record on appeal, we could properly hold that the omission of the certificate necessitates dismissal of the appeal. In the unusual circumstances of this case, however, we decline to do so. ³

Neither party raised the jurisdictional issue, and the absence of the certificate did not come to our attention until this opinion was being prepared. The certificate requirement is meant to protect the defendant by eliminating unjustified delay, but at this stage the delay has already been incurred, and vacating the appeal could not effectuate the congressional purpose. Because we had already resolved to uphold Herman's position, reaching the merits serves to protect, not undermine, Herman's right to a speedy disposition of the charges against him. ⁴ We therefore afford the government the review it seeks, but we serve notice upon it that we will entertain no future § 3731 appeals unless the appropriate certificate is incorporated in the record on appeal. ⁵

III. MERITS

Fed.R.Crim.P. 11(e)(6) makes inadmissible any statement made "in connection with" any offer to plead guilty or nolo contendere to the charged crime or to any other crime. ⁶ Fed.R.Ev. 410 contains exactly the same provision. ⁷ During the course of Herman's discussion with the postal inspectors, he offered to plead guilty to robbery. The question before us is whether Herman's other statements were made "in connection with" the plea offer. ⁸

To construe rule 11(e)(6) correctly we must set it in proper perspective. Plea bargaining is a practice many have criticized and few have enthusiastically endorsed. Nevertheless, plea bargaining has become an accepted fact of life. By 1971 the Supreme Court was able to encourage the practice, albeit on grounds of necessity rather than right:

The disposition of criminal charges by agreement between the prosecutor and the accused, sometimes loosely called "plea bargaining," is an essential component of the administration of justice. Properly administered, it is to be encouraged. If every criminal charge were subjected to a full-scale trial, the States and the Federal Government would need to multiply by many times the number of judges and court facilities.

Santobello v. New York, 404 U.S. 257, 260, 92 S.Ct. 495, 498, 30 L.Ed.2d 427 (1971).

The legal battleground has thus shifted from the propriety of plea bargaining to how best to implement and oversee the process. Plea bargaining is a tool of conciliation. It must not be a chisel of deceit or a hammered purchase and sale. The end result must come as an open covenant, openly arrived at with judicial oversight. A legal plea bargain is made in the sunshine before the penal bars darken. Accordingly, we must examine plea bargains under the doctrine of caveat prosecutor.

Even before the enactment of rule 11(e)(6), we held that plea-related statements are inadmissible, recognizing the inescapable truth that for plea bargaining to work effectively and fairly, a defendant must be free to negotiate without fear that his statements will later be used against him. In excluding a defendant's plea-related statements, Judge Coleman wrote:

If, as the Supreme Court said in Santobello, plea bargaining is an essential component of justice and, properly administered, is to be encouraged, it is immediately apparent that no defendant or his counsel will pursue such an effort if the remarks uttered during the course of it are to be admitted in evidence as proof of guilt. Moreover, it is inherently unfair for the government to engage in such an activity, only to use it as a weapon against the defendant when negotiations fail.

United States v. Ross, 493 F.2d 771, 775 (5th Cir. 1974). See United States v. Smith, 525 F.2d 1017 (10th Cir. 1975). Cf. Crawford v. United States, 219 F.2d 207 (5th Cir. 1955) (plea related statement held involuntary and thus constitutionally inadmissible). The Ross holding was codified in rule 11(e) (6).

Against this backdrop the inappropriateness of giving the rule an inhospitable reading becomes clear. Excluded statements must be made "in connection with" plea offers, but if we are overly exacting in deciding which statements come within this standard, we will deter the unrestrained candor that often produces effective plea negotiations. Defendants must be free to participate in open and uninhibited plea discussions, and their decisions to do so must not later be subjected to microscopic judicial examination to determine whether the statements were closely enough related to the plea offers. Statements are inadmissible if made at any point during a discussion in which the defendant seeks to obtain concessions from the government in return for a plea.

Indeed, even settlement negotiations in civil cases have been curtained by evidentiary impenetrability. See, e. g., Fed.R.Ev. 408. The necessity for sanctuaries in plea bargaining in criminal cases is no less compelling. If plea bargaining is pragmatically justified despite its potential for abuse, we should encourage candor by the accused, eschewing an interpretation of the rules that would make the accused less amenable to forthright plea discussions. The accused in the pretrial bargaining should be encouraged by knowledge that the discussions will have a sanctity. Hypertechnical considerations should not...